No.

_______

In the
Supreme Court of the United States

616 CROFT AVE., LLC, and

JONATHAN & SHELAH LEHRER-GRAIWER,
Petitioners,
v.
CITY OF WEST HOLLYWOOD,
Respondent.

On Petition for Writ of Certiorari

to the California Court of Appeal

PETITION FOR WRIT OF CERTIORARI

BRIAN T. HODGES LAWRENCE G. SALZMAN
Counsel of Record Pacific Legal Foundation
Pacific Legal Foundation 930 G Street
10940 Northeast 33rd Place, Sacramento, California 95814
Suite 210 Telephone: (916) 419-7111
Bellevue, Washington 98004 Facsimile: (916) 419-7747
Telephone: (425) 576-0484 E-mail: lgs@pacificlegal.org
Facsimile: (425) 576-9565
E-mail: bth@pacificlegal.org

Counsel for Petitioner

 i

QUESTION PRESENTED
A City of West Hollywood ordinance requires that
builders of a proposed 11-unit condominium pay a
$540,393.28 affordable housing fee to subsidize the
construction of low-cost housing elsewhere in the City.
The ordinance imposes the fee automatically as a
condition on the approval of a building permit, without
any requirement that the City show that the project
creates a need for low-cost housing.
The question presented is:
Whether a legislatively mandated permit
condition is subject to scrutiny under the
unconstitutional conditions doctrine as set out in
Koontz v. St. Johns River Water Management District,
133 S. Ct. 2586 (2013); Dolan v. City of Tigard, 512
U.S. 374 (1994); and Nollan v. California Coastal
Commission, 483 U.S. 825 (1987).
 ii

LIST OF ALL PARTIES

616 Croft Ave., LLC, and Shelah and Jonathan
Lehrer-Graiwer were the appellants in the California
state appellate and supreme court proceedings below
and are the petitioners herein.
City of West Hollywood, California, is the
municipal respondent.
CORPORATE
DISCLOSURE STATEMENT
Petitioners have no parent companies,
subsidiaries, or affiliates that are publicly owned
corporations, and there is no publicly held corporation
that owns 10% of its stock.
 iii

TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i
LIST OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . ii
CORPORATE DISCLOSURE STATEMENT . . . . . ii
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi
PETITION FOR WRIT OF CERTIORARI . . . . . . . . 1
OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONSTITUTIONAL PROVISIONS,
STATUTES, AND REGULATIONS AT
ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2
A. The City of West Hollywood Imposed a
Half-Million Dollar Affordable
Housing Fee on the Lehrer-Graiwers
Demolition and Building Permits . . . . . . . 4
B. The Lehrer-Graiwers Challenge the
In-Lieu Fee as Violating Nollan,
Dolan, and Koontz . . . . . . . . . . . . . . . . . . . 6
C. The California Court of Appeal Holds
That Nollan, Dolan, and Koontz Do
Not Apply to Legislatively Mandated
Exactions . . . . . . . . . . . . . . . . . . . . . . . . . . 9
REASONS FOR GRANTING THE WRIT . . . . . . . 11
 iv

TABLE OF CONTENTSContinued
Page
I. THE CALIFORNIA COURTS REFUSAL
TO RECOGNIZE WELL-SETTLED
PROPERTY RIGHTS CONFLICTS WITH
DECISIONS OF THIS COURT . . . . . . . . . . 12
II. THE CALIFORNIA COURTS REFUSAL
TO APPLY NOLLAN AND DOLAN
SCRUTINY TO LEGISLATIVELY
MANDATED EXACTIONS RAISES A
QUESTION OF FEDERAL LAW THAT
THIS COURT SHOULD SETTLE . . . . . . . . . 18
A. This Court Has Repeatedly Held
Legislatively Mandated Exactions
Subject to the Unconstitutional
Conditions Doctrine . . . . . . . . . . . . . . . . 18
B. Holding Legislative Exactions Subject
Only to a Reasonably Related to the
Public Welfare Test Fails To Protect
the Rights Guaranteed by the Fifth
Amendment . . . . . . . . . . . . . . . . . . . . . . . 25
C. Californias Legislative Exactions Rule
Undermines the Takings Clause by
Removing Any Limitation on the
Amount of Property That Can be
Demanded in a Permit Condition . . . . . . 28
 v

TABLE OF CONTENTSContinued
Page
III. THERE IS A SPLIT OF AUTHORITY
AMONG THE LOWER COURTS ABOUT
WHETHER THE NOLLAN AND DOLAN
STANDARDS APPLY TO EXACTIONS
MANDATED BY LEGISLATION . . . . . . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

APPENDIX
A. Opinion of the Court of Appeal of the State of
California, filed Sept. 23, 2016
B. Order of the Supreme Court of California,
filed December 21, 2016
C. Interlocutory Decision and Order of the
Superior Court of the State of California,
County of Los Angeles, Denying Petition for
Writ of Mandate, excerpt, filed June 16, 2015
D. City of West Hollywood Resolution No. 05-3268,
excerpt, adopted July 18, 2005
E. West Hollywood Municipal Code, Chapter 19.22
Affordable Housing Requirements and
Incentives
F. Community Development Department Fees,
excerpt, dated December 14, 2011
 vi

TABLE OF AUTHORITIES
Page
Cases
616 Croft Ave., LLC v. City of West Hollywood,
3 Cal. App. 5th 621 (2016) . . . . . . . . . . . . . . . . 1, 4
Alto Eldorado Partners v. City of Santa Fe,
634 F.3d 1170 (10th Cir. 2011) . . . . . . . . . . . . . . 31
Armstrong v. United States, 364 U.S. 40 (1960) . . 16
Brown v. Legal Found. of Wash.,
538 U.S. 216 (2003) . . . . . . . . . . . . . . . . . . . . . . . 16
California Bldg. Indus. Assn v. City of San Jose,
136 S. Ct. 928 (2016) . . . . . . . . . . . . . . . . . . . 24, 30
California Bldg. Indus. Assn v. City of San Jose,
61 Cal. 4th 435 (2015) . . . . . . . . . . . . 2-3, 10-11, 28
City of Portsmouth v. Schlesinger,
57 F.3d 12 (1st Cir. 1995) . . . . . . . . . . . . . . . . . . 31
Commercial Builders of N. Cal. v. City of
Sacramento, 941 F.2d 872 (9th Cir. 1991) . . . . . 31
Curtis v. Town of South Thomaston,
708 A.2d 657 (Me. 1998) . . . . . . . . . . . . . . . . . . . 30
Dolan v. City of Tigard,
512 U.S. 374 (1994) . . . . . . . . . . . . 3, 11, 13-14, 19
Doyle v. Continental Ins. Co.,
94 U.S. 535 (1876) . . . . . . . . . . . . . . . . . . . . . . . . 22
Ehrlich v. City of Culver City,
12 Cal. 4th 854 (1996) . . . . . . . . . . . . . . . . . . . . 3, 9
Ex parte Quarg, 149 Cal. 79 (1906) . . . . . . . . . . . . 17
Fisher v. City of Berkeley, 37 Cal. 3d 644 (1984) . . 17
 vii

TABLE OF AUTHORITIESContinued
Page
Frost & Frost Trucking Co. v. Railroad Commn,
271 U.S. 583 (1926) . . . . . . . . . . . . . . . . . . . . . . . 22
Garneau v. City of Seattle, 147 F.3d 802
(9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Gregory v. City of San Juan Capistrano,
191 Cal. Rptr. 47 (1983) . . . . . . . . . . . . . . . . . . . 17
Home Builders Assn of Cent. Arizona v.
Scottsdale, 930 P.2d 993 (Ariz.), cert. denied,
521 U.S. 1120 (1997) . . . . . . . . . . . . . . . . . . . . . . 31
Home Builders Assn of Dayton & Miami Valley v.
City of Beavercreek,
729 N.E.2d 349 (Ohio 2000) . . . . . . . . . . . . . . . . 30
Horne v. Dept of Agric.,
135 S. Ct. 2419 (2015) . . . . . . . . . . . . . . . . . . 16-17
Koontz v. St. Johns River Water Management
District, 133 S. Ct. 2586 (2013) . . . . . . . . . passim
Krupp v. Breckenridge Sanitation Dist.,
19 P.3d 687 (Colo. 2001) . . . . . . . . . . . . . . . . . . . 31
Lafayette Ins. Co v. French,
59 U.S. (18 How.) 404 (1855) . . . . . . . . . . . . . . . 20
Laguna Royale Owners Assn. v. Darger,
174 Cal. Rptr. 136 (1981) . . . . . . . . . . . . . . . . . . 17
Levin v. City & Cty. of San Francisco, 71 F. Supp.
3d 1072 (N.D. Cal. 2014) . . . . . . . . . . . . . . . . . . . 31
Lingle v. Chevon U.S.A., Inc.,
544 U.S. 528 (2005) . . . . . . . . . . . . . . . . . . . . . . . 26
 viii

TABLE OF AUTHORITIESContinued
Page
Loretto v. Teleprompter Manhattan CATV Corp.,
458 U.S. 419 (1982) . . . . . . . . . . . . . . . . . . . . . . . 27
Louisville Joint Stock Land Bank v. Radford,
295 U.S. 555 (1935) . . . . . . . . . . . . . . . . . . . . . . . 16
Manocherian v. Lenox Hill Hosp., 643 N.E.2d 479
(N.Y.), cert. denied, 514 U.S. 1109 (1994) . . . . . 31
Manufactured Hous. Cmtys. of Wash. v.
Washington, 142 Wash. 2d 347 (2000) . . . . . . . . 17
Marshall v. Barlows Inc., 436 U.S. 307 (1978) . . . 21
Mead v. City of Cotati, 389 Fed. Appx 637
(9th Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Miami Herald Publg Co. v. Tornillo,
418 U.S. 241 (1974) . . . . . . . . . . . . . . . . . . . . . . . 21
Nollan v. California Coastal Commission,
483 U.S. 825 (1987) . . . . . . . . . . . . . . . 3, 11-13, 18
Northern Illinois Home Builders Association, Inc.
v. County of Du Page,
649 N.E.2d 384 (Ill. 1995) . . . . . . . . . . . . . . . . . . 31
Old Dearborn Distrib. Co. v. Seagram Distillers
Corp., 299 U.S. 183 (1936) . . . . . . . . . . . . . . . . . 17
Parking Assn of Georgia, Inc. v. City of Atlanta,
Ga., 515 U.S. 1116 (1995) . . . . . . . . . . . . . . . 23, 30
Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922) . . . . . . . . . . . . . . . . . . . . . . . 26
San Remo Hotel L.P. v. City and Cty. of San
Francisco, 27 Cal. 4th 643 (2002) . . . . . 3, 9, 28, 31
 ix

TABLE OF AUTHORITIESContinued
Page
Sherbert v. Verner, 374 U.S. 398 (1963) . . . . . . . . . 21
Speiser v. Randall, 357 U.S. 513 (1958) . . . . . . . . . 21
Spinell Homes, Inc. v. Municipality of Anchorage,
78 P.3d 692 (Alaska 2003) . . . . . . . . . . . . . . . . . 31
St. Clair Cty. Home Builders Assn v. City of Pell
City, 61 So. 3d 992 (Ala. 2010) . . . . . . . . . . . . . . 31
Sterling Park, L.P. v. City of Palo Alto,
57 Cal. 4th 1193 (2013) . . . . . . . . . . . . . . . . . . . . 17
Town of Flower Mound v. Stafford Estates Ltd.
Pship, 135 S.W.3d 620 (Tex. 2004) . . . . . . . 29-30
Trimen Development Co. v. King Cty.,
877 P.2d 187 (Wash. 1994) . . . . . . . . . . . . . . . . . 31
United States v. General Motors Corp., 323 U.S.
373 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Webbs Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155 (1980) . . . . . . . . . . . . . . . . . . . . . . . 27
California Statute
Cal. Civ. Code 711 . . . . . . . . . . . . . . . . . . . . . . . . 17
U.S. Constitution
U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . . 2
U.S. Const. amend. XIV, 1 . . . . . . . . . . . . . . . . . . 2
 x

TABLE OF AUTHORITIESContinued
Page
Miscellaneous
Burling, James S., & Owen, Graham, The
Implications of Lingle on Inclusionary Zoning
and other Legislative and Monetary Exactions,
28 Stan. Envtl. L.J. 397 (2009) . . . . . . . . . . . . . . 23
Callies, David L., Regulatory Takings and the
Supreme Court: How Perspectives on Property
Rights Have Changed from Penn Central to
Dolan, and What State and Federal Courts Are
Doing About It, 28 Stetson L. Rev. 523 (1999) . . 22
Epstein, Richard A., Bargaining with the
State (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Haskins, Steven A., Closing the Dolan
DealBridging the Legislative/Adjudicative
Divide, 38 Urb. Law. 487 (2006) . . . . . . . . . . . . . 22
Huffman, James L., Dolan v. City of Tigard:
Another Step in the Right Direction,
25 Envtl. L. 143 (1995) . . . . . . . . . . . . . . . . . . . . 29
Note, Constitutional LawFifth Amendment
Takings ClauseCalifornia Court of Appeal
Finds Nollans and Dolans Heightened Scrutiny
Inapplicable to Inclusionary Zoning Ordinance.
Home Builders Assn of Northern California v.
City of Napa,
115 Harv. L. Rev. 2058 (2002) . . . . . . . . . . . . . . . 3
 1

PETITION FOR WRIT OF CERTIORARI

616 Croft Ave., LLC, and Shelah and Jonathan
Lehrer-Graiwer respectfully request that this Court
issue a writ of certiorari to review the judgment of the
California Court of Appeal, Second Appellate District,
Division One.

OPINIONS BELOW
The opinion of the California Court of Appeal is
reported at 616 Croft Ave., LLC v. City of West
Hollywood, 3 Cal. App. 5th 621 (2016), and is
reproduced in Petitioners Appendix (Pet. App.) at A.
The California Supreme Courts order denying review
appears at Pet. App. B.

JURISDICTION
This Court has jurisdiction pursuant to 28 U.S.C.
1257(a). Petitioners 616 Croft Ave., LLC, and Shelah
and Jonathan Lehrer-Graiwer filed a lawsuit
challenging the City of West Hollywoods permit
condition as violating the unconstitutional conditions
doctrine predicated on the Fifth and Fourteenth
Amendments to the United States Constitution. The
California Court of Appeal dismissed their federal
constitutional claim and upheld the Citys exaction in
the September 23, 2016, decision of the Second
District, Division One, of the California Court of
Appeal. The decision became final on December 21,
2016, when review was denied by the California
Supreme Court. This petition is timely filed pursuant
to Rule 13.
 2

CONSTITUTIONAL
PROVISIONS, STATUTES, AND
REGULATIONS AT ISSUE
The Takings Clause of the United States
Constitution provides that private property [shall not]
be taken for public use without just compensation.
U.S. Const. amend. V.
The Fourteenth Amendment to the United States
Constitution provides, in relevant part, that no state
shall deprive any person of life, liberty, or property,
without due process of law. U.S. Const. amend.
XIV, 1.
The relevant regulatory provisions are reproduced
in the appendix to this petition. Pet. App. E.

STATEMENT OF THE CASE

In 1975, Californias Legislature declared that the
lack of affordable low- and moderate-income housing
posed a very serious threat to the regions social and
economic well-being. See California Bldg. Indus. Assn
v. City of San Jose, 61 Cal. 4th 435, 441 (2015) (CBIA).
The states efforts to address the affordable housing
problem over the years, however, have been largely
unsuccessful. Id. Faced with a continuing shortage of
affordable housing, many local governments turned to
so-called inclusionary zoning ordinances, requiring
that developers dedicate a certain percentage of the
new homes they build as low-income housing, or pay a
fee in-lieu of the dedication. Id. Since first proposed,
the inclusionary zoning strategy has been highly
 3

controversial because it relies on a permit condition as

a tool to shift the burden of solving a pre-existing
public problem onto an individual property owner as
the price of obtaining an approval.1
While the inclusionary zoning strategy would
appear to directly implicate the doctrine of
unconstitutional conditions as set out in Koontz v. St.
Johns River Water Management District, 133 S. Ct.
2586 (2013); Dolan v. City of Tigard, 512 U.S. 374
(1994); and Nollan v. California Coastal Commission,
483 U.S. 825 (1987), a line of California cases has
adopted a categorical rule that excludes legislatively
imposed permit conditions from heightened scrutiny
required by that doctrine. See, e.g., Ehrlich v. City of
Culver City, 12 Cal. 4th 854, 868-69, 880-81 (1996)
(limiting doctrine to adjudicative decisions); San Remo
Hotel L.P. v. City and Cty. of San Francisco, 27 Cal.
4th 643, 671 (2002) (recognizing a California rule
excluding legislative exactions from the doctrine); see
also CBIA, 61 Cal. 4th at 461 n.11 (citing Koontz, 133
S. Ct. at 2599) (acknowledging the split of authority on
the legislative exactions question but declining to
address it).
This case arises from the City of West Hollywoods
application of its inclusionary zoning ordinance to
exact a half-million dollar affordable housing fee from
a small developer, whose proposed infill project was
determined to actually helpnot exacerbatethe
Citys housing shortage.

1
See, e.g., Note, Constitutional LawFifth Amendment Takings
ClauseCalifornia Court of Appeal Finds Nollans and Dolans
Heightened Scrutiny Inapplicable to Inclusionary Zoning
Ordinance. Home Builders Assn of Northern California v. City of
Napa, 115 Harv. L. Rev. 2058 (2002).
 4

A. The City of West Hollywood Imposed

a Half-Million Dollar Affordable
Housing Fee on the Lehrer-Graiwers
Demolition and Building Permits
Shelah and Jonathan Lehrer-Graiwer are the
owners and developers of an infill 11-unit
condominium project located at 612-616 North Croft
Avenue in the City of West Hollywood. Pet. App. A at
1-2. Acting through their company, 616 Croft Ave.,
LLC, in 2004, the Lehrer-Graiwers applied to the City
for permits necessary to redevelop two adjacent
single-family homes into a small condominium
complex. Id. The City Council approved the project in
a 2005 resolution, praising the projects superior
architectural design and noting that the development
will provide 11 families with a high quality living
environment.2 The Council also determined that the
net gain of nine new residential units would help the
City achieve its share of the regional housing need.3
Despite these findings, the City Council demanded
that the owners pay a fee in-lieu of its affordable
housing requirement as a condition of permit
approval.4 Pet. App. A at 3.
The City imposed the permit condition pursuant
to its inclusionary zoning ordinance (reproduced in Pet.

2
Pet. App. D (City of West Hollywood Res. No. 05-3268, 4(4)).
3
Id. 8(c).
4
Id. 11(Conditions 3.1 and 3.6); see also City of West Hollywood
Dept. Of Community Dev. letters dated July 29, 2004 (AR 16-17)
and September 24, 2004 (AR 26-27) asking whether the owners
planned to satisfy the Citys affordable housing exaction with on-
site units or an in-lieu fee.
 5

App. E), which requires developers to sell 20 percent of

their newly constructed units at specified
below-market rates or, in certain circumstances, to pay
an in-lieu fee to fund construction of the equivalent
number of units the developer would have otherwise
been required to set aside. Pet. App. E at 2-4 (West
Hollywood Municipal Code (WHMC)
19.22.030-19.22.040). If the owner opts to dedicate
housing units, he or she must first execute and record
a deed restriction granting, among other conditions, a
right of first refusal to any eligible households
displaced by the development before the City issues the
building permit.5 Pet. App. E at 4-5 (WHMC
19.22.080(C)). The owner must also grant the
Cityor any City-designated agency or
organizationa purchase option for any inclusionary
set-aside units that are not bought by displaced
households. Pet. App. E at 8 (WHMC 19.22.090(C)).
If the owner opts instead to pay an in-lieu fee, the
money is placed into the Citys affordable housing
trust fund where it is used to subsidize the provision

5
The ordinance operates as follows: Upon completion of the
inclusionary units, the owner must first offer the homes at a
price set by the City Council (currently between $66,413 and
$178,804) to any low- or moderate-income households (incomes
between $29,193 to $77,068) that were displaced by the project.
Next, the owner must offer the units to any displaced households
making up to 120 percent of the median income at the same
owner-subsidized below-market prices. After that, the City (or a
designated organization) may exercise its option to purchase the
property at the below-market price. Otherwise, the units must be
sold to general low- and moderate-income households at the same
owner-subsidized below-market prices. See City of West
Hollywood, Inclusionary Housing Program Information for
Developers at 6, available at http://www.weho.org/home/showdocument
?id=25568.
 6

of affordable housing. Pet. App. E at 3-4 (WHMC

19.22.040(E)). Although the City Code provides that
developers pay an equitable share of the cost of
mitigating for impacts caused by the proposed
development,6 the Council in fact imposed a set fee
based on a legislatively enacted fee schedule
applicable to all new residential development, based
solely on the floor area of the units to be constructed.
Id. at 3 (WHMC 19.22.040(B)); Pet. App. D ( 11
(Condition 3.1)); see also AR 884 (Exaction Fees).
The Councils uniform fee schedule permits no
variation of the affordable housing fee based on
project-specific circumstances.
Shortly after the Council approved the project
subject to an affordable housing exaction, the housing
market crashed. Pet. App. A at 3. At the
Lehrer-Graiwers requests, the Citys Planning
Commission extended its permit approvals several
times between July 2008 and December 2011. Id.
During that time, the Council drastically revised its fee
schedule, nearly doubling its affordable housing fees.
Id. Thus, when the Lehrer-Graiwers applied for the
necessary permits in December 2011, the City
conditioned issuance of the demolition and building
permits upon the immediate payment of a $540,393.28
affordable housing in-lieu fee. Id.; see also AR 884
(Exaction Fees).
B. The Lehrer-Graiwers Challenge the
In-Lieu Fee as Violating Nollan,
Dolan, and Koontz
The Lehrer-Graiwers objected and requested that
the City Council review both the timing and amount of

6
See WHMC 19.64.020.
 7

its fee. City staff refused to reconsider the fees and

refused to defer or extend the time for payment of the
exaction fees. Pet. App. A at 3-4. Thus, on
December 22, 2012, facing forfeiture or termination of
their development approvals, the Lehrer-Graiwers paid
the fees under protest. Id. The owners also requested
that the City Council conduct an administrative review
of the disputed exaction fees. Id.
When the Council did not respond to the request,
the Lehrer-Graiwers filed a lawsuit, seeking in part to
invalidate the low-income housing in-lieu fee under the
essential nexus and rough proportionality tests set
out by Nollan, Dolan, and Koontz. Pet. App. A at 4-5;
Appellants Opening Br. at 25. Together, the nexus
and proportionality tests hold that the government
cannot condition approval of a land-use permit on a
requirement that the owner dedicate private property
to the public, unless the government can show that the
dedication is necessary to mitigate adverse public
impacts caused by the proposed development. Koontz,
133 S. Ct. at 2594-95, 2599.
The Council eventually agreed to hold an
administrative hearing on the Lehrer-Graiwers fee
contest. During that proceeding, City staff asserted
that, under a California rule that excludes legislatively
mandated exactions from the heightened scrutiny
required by Nollan, Dolan, and Koontz, the City did
not need to provide any evidence establishing a
reasonable relationship between the housing fees and
the impacts of the project.7 Accordingly, the City
provided no evidence of nexus and proportionality,
admitting on the record that the in-lieu fee was not
7
See City of West Hollywoods March 18, 2003, Staff Report on
Fee Adjustment Hearing (AR 751-752).
 8

intended to mitigate impacts caused by

development.8 Instead, the City explained that the fee
was designed to meet needs for affordable housing
that exist independently of the Applicants residential
development project[.]9
After holding a hearing on the matter, the City
Council adopted the City staff attorneys argument as
justification for denying the Lehrer-Graiwers fee
challenge.10 Despite a complete lack of any connection
between the condominium proposal and the Citys
affordable housing needs, the City Council upheld the
$540,393.28 exaction fee. Pet. App. A at 4.
The Lehrer-Graiwers returned to the trial court,
which dismissed their unconstitutional conditions
claim under a line of California cases holding
legislatively imposed exactions categorically exempt
from the heightened scrutiny required by
Nollan/Dolan/Koontz.11 Pet. App. C at 10. Thus,
despite concluding that the ordinance required the
owners give the City a well-recognized and
constitutionally protected property interest (i.e., a
purchase option or a fee in-lieu) as a condition of

8
Id. (AR 752).
9
Id. (AR 752).
10
City of West Hollywood Resolution No. 13-4426, 5-6 (AR 865-
866).
11
AR 326-338. Based on the trial courts decision, the
Lehrer-Graiwers voluntarily dismissed their remaining claims in
order to immediately appeal the courts judgment. AR 433. Final
Judgment was entered on August 12, 2015. AR 440.
 9

permit approval,12 the trial court held that the

affordable housing condition was subject only to
Californias reasonable relationship test. Pet. App. C
14-15.
That test, however, asked only whether the fees
were reasonably related in purpose and amount to the
Citys need for affordable housing and to the cost of
developing affordable units elsewhere in the City.
Pet. App. C at 16-17. The court did not require the
City to show that the Lehrer-Graiwers development
caused a need for affordable housing to justify the in-
lieu fee. Pet. App. C at 17-18. Even so, the trial court
noted that the City admits that the need for
affordable housing in the City of West Hollywood
predates the projecta finding that plainly
demonstrates a lack of both nexus and proportionality
had those constitutional tests been applied. Id.
Nonetheless, the trial court upheld the $540,393.28
exaction upon the conclusion that the fee was related
to the cost of constructing affordable housing units
within the City. Id. at 21.
C. The California Court of Appeal Holds
That Nollan, Dolan, and Koontz Do
Not Apply to Legislatively Mandated
Exactions
The court of appeal upheld the trial courts
decision under the same line of California Supreme
Court cases holding that legislative exactions are
categorically exempt from Nollan/Dolan/Koontz. Pet.
App. A at 9-10 (citing San Remo Hotel, 27 Cal. 4th at
668-70, and Ehrlich, 12 Cal. 4th at 880-81). Thus,
instead of applying the nexus and proportionality tests,

12
Pet. App. C at 14-15.
 10

the court held that the Lehrer-Graiwers bore the

burden of proving that the $540,393.28 in-lieu fee bore
no reasonable relationship to the publics interest in
affordable housing. Pet. App. A at 7, 9, 11, 13. And,
like the trial court, the court of appeal had no problem
concluding that a fee earmarked for funding the
development of new housing elsewhere in the City
would advance the publics interest in new affordable
housing. Pet. App. A at 14-15.
Like the trial court, the court of appeal readily
acknowledged that the in-lieu fee lacked both a nexus
and a proportional relationship to the condominium
project:
[T]he in-lieu housing fee here is not to defray
the cost of increased demand on public
services resulting from Crofts specific
development project, but rather to combat the
overall lack of affordable housing.
Pet. App. A at 9. But the court explained that, under
Californias rule, the validity of the affordable housing
fee logically cannot depend on whether the amount of
the in lieu fee is reasonably related to the
developments impact on the citys affordable housing
need.13 Id. (quoting CBIA, 61 Cal. 4th at 477). That
is because the Citys affordable housing fee is not
intended to mitigate any adverse impacts of new
developmentinstead, the fee is designed to enhance
the public welfare by demanding that private property

13
The court treated the Lehrer-Graiwers claim as raising both
a facial challenge to the City Councils adoption of the fee schedule
(which the court dismissed as untimely) and an as-applied
challenge to the fees actually imposed on the permit condition.
Pet. App. A at 6-7 (facial), 7-15 (as-applied). This petition concerns
the as-applied challenge.
 11

owners put their land or money toward the

development of affordable housing. Id. (quoting CBIA,
61 Cal. 4th at 454).
The Lehrer-Graiwers filed a petition for review
with the California Supreme Court, which was denied
(Pet. App. B), and now respectfully ask this Court to
issue a writ of certiorari and provide much-needed
direction on the important question of federal law
decided below.

REASONS FOR GRANTING THE WRIT

This case raises an important issue concerning the
limitations that the Takings Clause of the Fifth
Amendment of the U.S. Constitution places on a
governments authority to use the permit process to
force private property owners to dedicate private
property to a public use. In the decision below, the
California Court of Appeal adopted a rule of federal
law that allows the government to circumvent the
nexus and proportionality analysis set out by this
Court in Koontz, 133 S. Ct. 2586, Dolan, 512 U.S. 374,
and Nollan, 483 U.S. 825, whenever the permit
condition is required by an act of generally applicable
legislation. Not only does the California decision
depart from this Courts unconstitutional conditions
doctrine precedents, it deepens a long-standing split of
authority among the lower courts regarding the
scrutiny applied to legislatively mandated exactions.
The petition should be granted.
 12

I
THE CALIFORNIA COURTS REFUSAL
TO RECOGNIZE WELL-SETTLED
PROPERTY RIGHTS CONFLICTS WITH
DECISIONS OF THIS COURT
The California Court of Appeals decision adopted
a rule that categorically excludes well-recognized
property rights from the protections guaranteed by the
Fifth Amendment and the doctrine of unconstitutional
conditions. Because of the per se nature of the
California rule, the lower court refused to examine the
permit condition to determine if the fee was imposed in
lieu of a dedication of a property interest. Pet. App. A
at 9-10. The courts refusal to do so directly conflicts
with this Courts case law and leaves property owners
without any protection against the type of extortion
that the doctrine of unconstitutional conditions is
supposed to curtail.
The nexus and rough proportionality tests are
important safeguards of private property rights subject
to land-use permitting. Koontz, 133 S. Ct. at 2599; see
also Nollan, 483 U.S. at 833 ([T]he right to build on
ones own propertyeven though its exercise can be
subjected to legitimate permitting requirements
cannot remotely be described as a governmental
benefit. ). The tests protect landowners by
recognizing the limited circumstances in which the
government may lawfully condition permit approval
upon the dedication of a property interest to the public:
(1) the government may require a landowner to
dedicate property to a public use only where the
dedication is necessary to mitigate for the negative
impacts of the proposed development on the public; and
(2) the government may not use the permit process to
 13

coerce landowners into giving property to the public

that the government would otherwise have to pay for.
Koontz, 133 S. Ct. at 2594-95; see also Dolan, 512 U.S.
at 385 ([G]overnment may not require a person to give
up the constitutional right . . . to receive just
compensation when property is taken for a public
usein exchange for a discretionary benefit [that] has
little or no relationship to the property.).
The heightened scrutiny demanded by Nollan and
Dolan is essential because landowners are especially
vulnerable to the type of coercion that the
unconstitutional conditions doctrine prohibits because
the government often has broad discretion to deny a
permit that is worth far more than property it would
like to take. Koontz, 133 S. Ct. at 2594; see also id. at
2596 (Extortionate demands for property in the land-
use permitting context run afoul of the Takings Clause
not because they take property but because they
impermissibly burden the right not to have property
taken without just compensation.).
In Nollan, the California Coastal Commission,
acting pursuant to the requirements of a state law,
required the Nollans to dedicate an easement over a
strip of their private beachfront property as a condition
of obtaining a permit to rebuild their home. 483 U.S.
at 827-28. The Commission specifically justified the
condition on the grounds that the new house would
increase blockage of the view of the ocean, thus
contributing to the development of a wall of
residential structures that would prevent the public
psychologically . . . from realizing a stretch of coastline
exists nearby that they have every right to visit, and
would increase private use of the shorefront. Id. at
828-29 (quoting Commission). The Nollans refused to
 14

accept the condition and brought a federal taking claim

against the Commission in state court, arguing that
the condition constituted a taking because it bore no
connection to the impact of their proposed
development.
This Court agreed, holding that the easement
condition was an unconstitutional taking because it
lacked an essential nexus to the alleged public
impacts that the Nollans project caused. Id. at 837.
Because the Nollans home would have no impact on
public beach access, the Commission could not justify
a permit condition requiring them to dedicate an
easement over their property. Id. at 838-39. Without
a constitutionally sufficient connection between a
permit condition and a projects alleged impact, the
easement condition was not a valid regulation of land
use but an out-and-out plan of extortion. Id. at 837
(citations omitted).
In Dolan, this Court defined how close a fit is
required between a permit condition and the alleged
impact of a proposed land use. There, the citys
development code imposed conditions on Florence
Dolans permit to expand her plumbing and electrical
supply store that required her to dedicate some of her
land for flood-control improvements and a bicycle path.
512 U.S. at 377. Dolan refused to comply with the
conditions and sued the city in state court, alleging
that the development conditions effected an unlawful
taking and should be enjoined. This Court held that
the city established a nexus between both conditions
and Dolans proposed expansion, but nevertheless held
that the conditions were unconstitutional. Even when
a nexus exists, there still must be a degree of
connection between the exactions and the projected
 15

impact of the proposed development. Id. at 386.

There must be rough proportionalityi.e., some sort
of individualized determination that the required
dedication is related both in nature and extent to the
impact of the proposed development. Id. at 391. The
Dolan Court held that the city had not demonstrated
that the conditions were roughly proportional to the
impact of Dolans expansion and invalidated the permit
conditions. Id.
In Koontz, this Court held that fees imposed in
lieu of dedication of property must also comply with
the nexus and proportionality requirements. In that
case, a government permitting agency conditioned the
approval of Coy Koontzs application to develop 3.9
acres of his 14.9-acre commercial-zoned property. 133
S. Ct. at 2593. Koontz offered to give the agency a
conservation easement over the remaining 11 acres,
but that was not enough. Id. The agency demanded
that Koontz either dedicate 13.9 acres of his land or
pay a fee in lieu of the additional demanded property.
Id. Koontz objected to the condition and the agency
denied his application. Id. Koontz challenged the
agencys decision as a violation of the doctrine of
unconstitutional conditions. Id. On review, this Court
confirmed that an in-lieu fee is often the functional
equivalent of an exaction of land. Id. at 2599.
Thus, courts considering a monetary exactions
claim must first analyze the entire demand imposed by
the government to determine whether it would
transfer an interest in property from the landowner to
the government.14 Id. at 2600. If so, then the in-lieu

14
In other words, the demand must seek an interest in private
property, which is defined as the collection of rights inhering in an
(continued...)
 16

fee constitutes an exaction subject to the nexus and

proportionality tests.
That requirement is met here. Indeed, in an
unappealed conclusion of law, the trial court
determined that West Hollywoods affordable housing
ordinance conditions permit approval upon the transfer
of well-recognized property rights to the City. Pet.
App. C at 14-16 (the ordinance demands that
developers give[] it a right of first refusal to purchase
the affordable units which is, in effect, an option and
is a protected property right). Specifically, the
ordinance requires developers to dedicate the
following:
(1) the right of first refusal (WHMC
19.22.090(c));
(2) the right to freely alienate property (WHMC
19.22.090(a), (b)); and
(3) the right to sell property at a fair market price
(WHMC 19.22.090(f)); or
(4) a fee in lieu (WHMC 19.22.040).

14
(...continued)
individuals relationship to his or her land or personal property,
including an owners financial investment in his or her property.
United States v. General Motors Corp., 323 U.S. 373, 378 (1945)
(property is comprised of the rights to possess, use, exclude
others, and dispose of the property); see also Horne v. Dept of
Agric., 135 S. Ct. 2419, 2426 (2015) (crops); Koontz, 133 S. Ct. at
2601 (money and real property); Brown v. Legal Found. of Wash.,
538 U.S. 216, 235 (2003) (interest on legal trust accounts);
Armstrong v. United States, 364 U.S. 40, 44-49 (1960) (liens);
Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 601-02
(1935) (mortgages).
 17

California property law recognizes that owners have a

right to sell their property to whom they choose, at a
price they choosewhich includes a right of first
refusal. See Sterling Park, L.P. v. City of Palo Alto, 57
Cal. 4th 1193, 1207 (2013) (a purchase option is a
protected property right); Gregory v. City of San Juan
Capistrano, 191 Cal. Rptr. 47, 58 (1983) (A right of first
refusal is a property right);15 see also Horne, 135 S. Ct.
at 2429 (finding a taking even where the government
shares in the sale proceeds of seized raisins because
the growers lose any right to control their
disposition); Old Dearborn Distrib. Co. v. Seagram
Distillers Corp., 299 U.S. 183, 191-92 (1936) ([T]he
right of the owner of property to fix the price at which
he will sell it is an inherent attribute of the property
itself, and as such is within the protection of the Fifth
and Fourteenth Amendments.); Laguna Royale
Owners Assn. v. Darger, 174 Cal. Rptr. 136, 144 (1981)
(recognizing an owners right to use and dispose of
property as he chooses); Ex parte Quarg, 149 Cal. 79,
80 (1906) (An owner of property has a clear right to
dispose of it, to sell it to whom he pleases and at such
price as he can obtain.); Cal. Civ. Code 711 (a
property owner has the right to freely alienate
property, and to be free from unreasonable restraints
on alienation of property).
The decision below, however, explained that under
the California rule, it is unnecessary for a court to
consider whether the governments underlying demand

15
Disapproved of on other grounds by Fisher v. City of Berkeley,
37 Cal. 3d 644 (1984); see also Manufactured Hous. Cmtys. of
Wash. v. Washington, 142 Wash. 2d 347 (2000) (statute which gave
mobile home park tenants a right of first refusal, and took away
such right from owner, was a taking even though it would benefit
members of the public).
 18

seeks the dedication of a property interest because all

legislative exactions are categorically exempt from
heightened scrutiny under Nollan, Dolan, and Koontz.
Pet. App. A at 10. As a result, the state court failed to
protect well-recognized rights from being indirectly
appropriated in a permit condition, raising an
important question of federal takings law that
warrants review.
II
THE CALIFORNIA COURTS REFUSAL
TO APPLY NOLLAN AND DOLAN
SCRUTINY TO LEGISLATIVELY
MANDATED EXACTIONS RAISES A
QUESTION OF FEDERAL LAW THAT
THIS COURT SHOULD SETTLE
A. This Court Has Repeatedly Held
Legislatively Mandated Exactions
Subject to the Unconstitutional
Conditions Doctrine
There is no basis in this Courts case law for the
distinction that the California court relies on to afford
lesser scrutiny to legislatively mandated exactions. In
fact, this Courts exactions decisions belie any
distinction whatsoever.
Nollan, Dolan, and Koontz all involved conditions
mandated by general legislationa fact specifically
noted in each of the opinions. The dedication of the
Nollans beachfront, for example, was required by a
state law. Nollan, 483 U.S. at 828-30 (California
Coastal Act and California Public Resources Code
imposed public access conditions on all coastal
development permits); see also id. at 858 (Brennan, J.,
dissenting) (Pursuant to the California Coastal Act of
 19

1972, a deed restriction granting the public an

easement for lateral beach access had been imposed
[by the Commission] since 1979 on all 43 shoreline new
development projects in the Faria Family Beach
Tract.).
Both the bike path and greenway dedications at
issue in Dolan were mandated by city land-use
planning ordinances. See Dolan, 512 U.S. at 377-78
(The citys development code requires that new
development facilitate this plan by dedicating land for
pedestrian pathways.); id. at 379-80 (The City
Planning Commission . . . granted petitioners permit
application subject to conditions imposed by the citys
[Community Development Code].).
And the in-lieu fee at issue in Koontz was required
by state law. Koontz, 133 S. Ct. at 2592 (Floridas
Water Resources Act of 1972 and Wetland Protection
Act of 1984 require that permitting agencies impose
conditions on any development proposal within
designated wetlands).
Koontz, which also involved a fee imposed in lieu
of a dedication of private property to the public, is
directly on point. Id. at 2592-93. The permitting
authority in that case determined the amount of the
fee pursuant to a generally applicable regulation
setting the minimum mitigation ratio.16 Id. Floridas
Department of Environmental Protection adopted the
regulation nearly a decade before Koontz submitted his
permit application. Id. The fact that the fee was
legislatively required did not deter this Court from

16
See also Respondents Brief in Opposition, Koontz, 2012 WL
3142655, at *5 n.4 (U.S. Aug. 2012) (citing Fla. Dept of Env. Reg.,
Policy for Wetlands Preservation-as-Mitigation (June 20, 1988)).
 20

concluding that it was subject to the nexus and

proportionality tests (Koontz, 133 S. Ct. at
2599-2600)a fact that compelled Justice Kagan,
writing in dissent, to question whether the majority
had rejected the legislative-versus-adjudicative
distinction. Koontz, 133 S. Ct. at 2608 (Kagan, J.,
dissenting).
Koontz holds that when the government imposes
an in-lieu fee on a permit approval, the reviewing court
must look at the underlying condition to determine
whether it implicates the doctrine of unconstitutional
conditions. See Koontz, 133 S. Ct. at 2599 (An in-lieu
fee is the functional[] equivalent of the demand for a
dedication of property.). Thus, as a predicate to an as-
applied challenge, a court must first determine
whether any of the alternative demands (in this case,
the dedication of low-income units and a right of first
refusal) would violate the Constitution. Koontz, 133 S.
Ct. at 2598. By adopting a per se rule that excludes all
legislatively mandated exactions from inquiry, the
court of appeal eliminated this necessary
determination, leaving constitutionally guaranteed
rights without meaningful protection.
Furthermore, there is no basis in the
unconstitutional conditions doctrine for drawing any
distinction between legislative and adjudicative
exactions. Indeed, since the doctrines origin in the
mid-nineteenth century, this Court has frequently
relied on the doctrine to invalidate legislative acts that
impose unconstitutional conditions on individuals.17

17
See Lafayette Ins. Co v. French, 59 U.S. (18 How.) 404, 407
(1855) (Invalidating provisions of state law conditioning
permission for a foreign company to do business in Ohio upon the
(continued...)
 21

The purpose of the doctrineto enforce a

constitutional limit on government authorityexplains
why it applies without regard to the type of
government entity making the unconstitutional
demand:
[T]he power of the state . . . is not unlimited;
and one of the limitations is that it may not
impose conditions which require
relinquishment of constitutional rights. If
the state may compel the surrender of one
constitutional right as a condition of its favor,
it may, compel a surrender of all. It is
inconceivable that guarantees embedded in
the Constitution of the United States may
thus be manipulated out of existence.

17
(...continued)
waiver of the right to litigate disputes in the U.S. Federal District
Courts because This consent [to do business as a foreign
corporation] may be accompanied by such condition as Ohio may
think fit to impose; . . . provided they are not repugnant to the
constitution or laws of the United States.); see also Marshall v.
Barlows Inc., 436 U.S. 307, 315 (1978) (invalidating provisions of
the Occupational Safety and Health Act, holding that a business
owner could not be compelled to choose between a warrantless
search of his business by a government agent or shutting down the
business); Miami Herald Publg Co. v. Tornillo, 418 U.S. 241, 255
(1974) (holding a state statute unconstitutional as an abridgement
of freedom of the press because it forced a newspaper to incur
additional costs by adding more material to an issue or remove
material it desired to print); Sherbert v. Verner, 374 U.S. 398, 406
(1963) (provisions of unemployment compensation statute held
unconstitutional where government required person to violate a
cardinal principle of her religious faith in order to receive
benefits); Speiser v. Randall, 357 U.S. 513, 528-29 (1958) (a state
constitutional provision authorizing the government to deny a tax
exemption for applicants refusal to take loyalty oath violated
unconstitutional conditions doctrine).
 22

Frost & Frost Trucking Co. v. Railroad Commn, 271

U.S. 583, 593-94 (1926) (invalidating state law that
required trucking company to dedicate personal
property to public uses as a condition for permission to
use highways).18
Legal scholars also find little doctrinal basis
beyond blind deference to legislative decisions to limit
[the] application of [Nollan or Dolan] only to
administrative or quasi-judicial acts of government
regulators. David L. Callies, Regulatory Takings and
the Supreme Court: How Perspectives on Property
Rights Have Changed from Penn Central to Dolan, and
What State and Federal Courts Are Doing About It, 28
Stetson L. Rev. 523, 567-68 (1999). Indeed, where a
single government body writes the law, issues permits,
and sits in review of its decision as the City did here,
it is often difficult to distinguish one branch of the
government from the other. Steven A. Haskins,
Closing the Dolan DealBridging the
Legislative/Adjudicative Divide, 38 Urb. Law. 487, 514
(2006) (describing the difficulty in drawing a line
between legislative and administrative decisionmaking
in the land-use context).

18
See also Doyle v. Continental Ins. Co., 94 U.S. 535, 543 (1876)
(Bradley, J., dissenting) (Though a State may have the power, if
it sees fit to subject its citizens to the inconvenience, of prohibiting
all foreign corporations from transacting business within its
jurisdiction, it has no power to impose unconstitutional conditions
upon their doing so.); Richard A. Epstein, Bargaining with the
State 5 (1993) (The doctrine holds that even if the government has
absolute discretion to grant or deny any individual a privilege or
benefitsuch as a land-use permit, it cannot grant the privilege
subject to conditions that improperly coerce, pressure, or induce
the waiver of that persons constitutional rights.).
 23

The irrelevance of the legislative v.

administrative distinction comes as no surprise,
because Nollan and Dolan are rooted in the
unconstitutional-conditions doctrine, which does not
distinguish, in theory or in practice, between
conditions imposed by different branches of
government. James S. Burling & Graham Owen, The
Implications of Lingle on Inclusionary Zoning and
other Legislative and Monetary Exactions, 28 Stan.
Envtl. L.J. 397, 400 (2009). Moreover, [g]iving greater
leeway to conditions imposed by the legislative branch
is inconsistent with the theoretical justifications for
the doctrine because those justifications are concerned
with questions of the exercise [of] government power
and not the specific source of that power. Id. at 438.
Indeed, from the property owners perspective, he
suffers the same injury whether a legislative or
administrative body forces him to bargain away his
rights in exchange for a land-use permit.
Two Justices of this Court have expressed marked
skepticism at the very idea that the need for
heightened scrutiny is obviated when a legislative
bodyas opposed to some other government
entitydecides to exact a property interest from
developers. In Parking Assn of Georgia, Inc. v. City of
Atlanta, Ga., the Atlanta City Council, motivated by a
desire to beautify the downtown area, adopted an
ordinance that required the owners of parking lots to
include landscaped areas equal to at least 10 percent
of the paved area at an estimated cost of $12,500 per
lot. 515 U.S. 1116, 1116 (1995) (Thomas, J., joined by
OConnor, J., dissenting from denial of certiorari).
Despite an apparent lack of proportionality, Georgias
Supreme Court upheld the ordinance, concluding that
legislatively imposed exactions are not subject to
 24

Nollan and Dolan. Id. at 1117. The dissenting

Justices stated that there appeared to be no
meaningful distinction between legislatively imposed
conditions and other exactions:
It is not clear why the existence of a taking
should turn on the type of government entity
responsible for the taking. A city council can
take property just as well as a planning
commission can. Moreover, the general
applicability of the ordinance should not be
relevant in a takings analysis. If Atlanta had
seized several hundred homes in order to
build a freeway, there would be no doubt that
Atlanta had taken property. The distinction
between sweeping legislative takings and
particularized administrative takings
appears to be a distinction without a
constitutional difference.
Id. at 1117-18 (Thomas, J., joined by OConnor, J.,
dissenting from denial of certiorari). Both Justices
argued that the question presented warrants review
because it raises a substantial question of federal
constitutional law. Id. at 1118.
Justice Thomas reaffirmed that position in his
concurring opinion in support of the Courts denial of
certiorari in California Bldg. Indus. Assn v. City of
San Jose, 136 S. Ct. 928, 928 (2016) (Thomas, J.,
concurring in denial of certiorari). There, he wrote
that the lower courts have divided over whether the
Nollan/Dolan test applies in cases where the alleged
taking arises from a legislatively imposed condition
rather than an administrative one for at least two
decades. Id. Once again, he expressed doubt that the
existence of a taking should turn on the type of
 25

governmental entity responsible for the taking. Id.

(citing Parking Assn of Georgia, 515 U.S. at 1117-18).
Justice Thomas further noted that the Court should
resolve this issue as soon as possible:
Until we decide this issue, property owners
and local governments are left uncertain
about what legal standard governs legislative
ordinances and whether cities can
legislatively impose exactions that would not
pass muster if done administratively. These
factors present compelling reasons for
resolving this conflict at the earliest
practicable opportunity.
Id.; see also Koontz, 133 S. Ct. at 2608 (Kagan, J.,
dissenting) (The fact that this Court has not yet
resolved the split of authority on this question casts a
cloud on every decision by every local government to
require a person seeking a permit to pay or spend
money.).
Californias adoption of a categorical rule
exempting all legislatively mandated exactions
from the heightened scrutiny required by
Nollan/Dolan/Koontz implicates all of the legal and
policy concerns identified by members of this Court
and warrants review.
B. Holding Legislative Exactions Subject
Only to a Reasonably Related to the
Public Welfare Test Fails To Protect
the Rights Guaranteed by the Fifth
Amendment
The decision below holds that a challenge to a
legislatively imposed condition on a development
permit is subject only to a test that asks whether the
 26

condition reasonably relates to the publics general

welfare. Pet. App. A at 9-10, 11-15. That standard is
meaningless in the context of the Takings Clause
because it cannot protect against an uncompensated
taking of private property for public use and is thus
antithetical to this Courts takings jurisprudence.
In Lingle, this Court rejected the substantially
advances a legitimate government interest test as a
takings test, because it reveal[ed] nothing about the
magnitude or character of the burden a particular
regulation imposes upon private property rights. 544
U.S. 528, 542 (2005). A test that tells us nothing
about the actual burden imposed on property rights, or
how that burden is allocated, cannot tell us when
justice might require that the burden be spread among
taxpayers through payment of compensation. Id. at
543. Thus, a determination that a regulation serves a
public need, without more, is not sufficient to justify a
regulation that appropriates property for a public use.
Id. at 542-43; see also Pennsylvania Coal Co. v. Mahon,
260 U.S. 393, 416 (1922) ([A] strong public desire to
improve the public condition is not enough to warrant
achieving that desire by a shorter cut than the
constitutional way of paying for the change.).
By circumventing the analysis required by Nollan
and Dolan, the California rule shifts the takings
inquiry away from the severity of the burden imposed,
and focuses instead upon how it has been imposed.
Under this formulation, the same burdensome exaction
may be upheld if imposed legislatively, but struck
down as a taking if imposed adjudicatively. This is
precisely the result that Lingle determined to be
incongruent with the Takings Clause. 544 U.S. at 543.
Lingle provides that, if two landowners are identically
 27

burdened by regulatory acts, [i]t would make little

sense to say that the second owner had suffered a
taking while the first had not. Id.
Lingles pronouncement that identical regulatory
burdens should be treated equally under the Takings
Clause is no less true in the exactions context, and the
court below improperly held otherwise. As with the
other takings tests, Nollan and Dolan focus upon the
severity of the burden imposed. Id. at 547 (Nollan
and Dolan both involved dedications of property so
onerous that, outside the exactions context, they would
be deemed per se physical takings.). Lingle recognized
that Nollan and Dolan amounted to takings because
the exactions imposed in those cases were functionally
equivalent to physical invasions; however, where
government physically invades a property, it effects a
taking whether the legislature authorizes the invasion
or not.19 Therefore, because the monetary exaction in
this case would also constitute a per se taking if
imposed directly (Koontz, 133 S. Ct. at 2600), the fact
that the legislature authorized the imposed conditions
is irrelevant to the analysis.
Moreover, Californias reasonably related
standard directly implicates the fundamental
understanding that a State, by ipse dixit, may not
transform private property into public property
without compensation. Webbs Fabulous Pharmacies,
Inc. v. Beckwith, 449 U.S. 155, 162 (1980). As
demonstrated by the decisions below, the reasonably
related test is predicated on the conclusion that the

19
See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419, 435 (1982) (invalidating statute requiring that owners of
apartment building allow private companies to install cable boxes
on the buildings).
 28

public, by operation of the Citys ordinance, had a

proprietary interest in the number of affordable
housing units it demands from new development. Pet.
App. C at 19-21 (concluding that the Lehrer-Graiwers
decision to pay a fee in-lieu deprived the City of the
affordable housing units that would otherwise be
required). Thus, the lower courts upheld the half-
million dollar fee simply because it represented the
replacement cost of the inclusionary units that the
Citys ordinance demanded. Only the heightened
scrutiny required by Nollan, Dolan, and Koontz will
guard against this type of end-run.
C. Californias Legislative Exactions
Rule Undermines the Takings Clause
by Removing Any Limitation on the
Amount of Property That Can be
Demanded in a Permit Condition
The California courts justify the adoption of a
categorical rule by likening legislative exactions to the
type of generally applicable land-use regulations that
are subject to the normal democratic process, which
typically operates as a check on legislative authority.
CBIA, 61 Cal. 4th at 471 (While legislatively
mandated fees do present some danger of improper
leveraging, such generally applicable legislation is
subject to the ordinary restraints of the democratic
political process.) (quoting San Remo Hotel, 27 Cal.
4th at 671). That justification fails because the
Takings Clause is founded on the anti-majoritarian
principle that public burdens . . . should be borne by
the public as a whole and cannot be shifted onto
individual property owners. Armstrong, 364 U.S.
at 49.
 29

When the government places public costs on a

small number of people, the democratic process, which
is majoritarian in nature, works as an endorsement,
not a check. See James L. Huffman, Dolan v. City of
Tigard: Another Step in the Right Direction, 25 Envtl.
L. 143, 152 (1995) (The takings clause . . . protects
against this majoritarian tyranny . . . by insisting that
the costs imposed by government use or regulation of
private property are borne by all to whom the benefits
inure.). In that circumstance, it [is] entirely possible
that the government could gang up on particular
groups to force extractions that a majority of
constituents would not only tolerate but applaud, so
long as burdens they would otherwise bear were
shifted to others. Town of Flower Mound v. Stafford
Estates Ltd. Pship, 135 S.W.3d 620, 641 (Tex. 2004).
That is precisely how West Hollywoods
inclusionary zoning ordinance works. The affordable
housing exaction does not defray the cost of increased
demand on public services resulting from [any
individual developers] specific development project,
but rather . . . combat[s] the overall lack of affordable
housing. Pet. App. A at 9. That is a textbook public
burden which constitutionally must be shouldered by
the public at large. But Californias legislative
exactions rule allows local government to adopt a law
shifting that burden onto individual property owners
in the form of a permit condition. Thus, the City
demanded a half-million dollar feeearmarked for the
Citys general housing subsidy programfrom an
owner whose proposed condominium would help
ameliorate the Citys housing shortage, without public
outcry.
 30

When the government is not required to

demonstrate a connection between an exaction and the
project impacts, and where there is no meaningful
democratic check on its actions, there is no limit to the
amount of money or property that the government can
demand as a permit condition, and there is no end to
the types of social problems that individual property
owners will not be called upon to solve. The California
courts decision, therefore, operates as an exception
that swallows the rules and policy this Court set out in
Nollan, Dolan, and Koontz. This Court should not
allow such a troubling decision to stand unreviewed.
III
THERE IS A SPLIT OF AUTHORITY
AMONG THE LOWER COURTS ABOUT
WHETHER THE NOLLAN AND DOLAN
STANDARDS APPLY TO EXACTIONS
MANDATED BY LEGISLATION
Courts across the country are split over the
question of whether legislatively imposed permit
conditions are subject to review under Nollan and
Dolan. See Parking Assn of Georgia, 515 U.S. at 1117
(recognizing a nationwide split of authority); California
Bldg. Indus. Assn, 136 S. Ct. at 928 (division has been
deepening for over twenty years). The Texas, Ohio,
Maine, Illinois, New York, and Washington Supreme
Courts and the First Circuit Court of Appeals do not
distinguish between legislatively and administratively
imposed exactions, and apply the nexus and
proportionality tests to generally applicable permit
conditions. Town of Flower Mound, 135 S.W.3d at 641;
Home Builders Assn of Dayton & Miami Valley v. City
of Beavercreek, 729 N.E.2d 349, 355-56 (Ohio 2000);
Curtis v. Town of South Thomaston, 708 A.2d 657, 660
 31

(Me. 1998); City of Portsmouth v. Schlesinger, 57 F.3d

12, 16 (1st Cir. 1995); Northern Illinois Home Builders
Association, Inc. v. County of Du Page, 649 N.E.2d 384,
397 (Ill. 1995); Manocherian v. Lenox Hill Hosp., 643
N.E.2d 479, 483 (N.Y.), cert. denied, 514 U.S. 1109
(1994); Trimen Development Co. v. King Cty., 877 P.2d
187, 194 (Wash. 1994).
On the other hand, the Supreme Courts of
Alabama, Alaska, Arizona, California, and Colorado,
and the Tenth Circuit Court of Appeals, limit Nollan
and Dolan to administratively imposed conditions.
See, e.g., Alto Eldorado Partners v. City of Santa Fe,
634 F.3d 1170, 1179 (10th Cir. 2011); St. Clair Cty.
Home Builders Assn v. City of Pell City, 61 So. 3d 992,
1007 (Ala. 2010); Spinell Homes, Inc. v. Municipality of
Anchorage, 78 P.3d 692, 702 (Alaska 2003); San Remo
Hotel, 27 Cal. 4th at 643; Krupp v. Breckenridge
Sanitation Dist., 19 P.3d 687, 696 (Colo. 2001); Home
Builders Assn of Cent. Arizona v. Scottsdale, 930 P.2d
993, 996 (Ariz.), cert. denied, 521 U.S. 1120 (1997).
Meanwhile, the Ninth Circuit is internally
conflicted on this question. See Mead v. City of Cotati,
389 Fed. Appx 637, 639 (9th Cir. 2010) (Nollan and
Dolan do not apply to legislative conditions);
Commercial Builders of N. Cal. v. City of Sacramento,
941 F.2d 872, 874-76 (9th Cir. 1991) (adjudicating a
Nollan-based claim against an ordinance requiring
developers to provide affordable housing); Garneau v.
City of Seattle, 147 F.3d 802, 813-15, 819-20 (9th Cir.
1998) (plurality opinion with the court divided equally
on whether Nollan and Dolan apply to legislative
exactions); see also Levin v. City & Cty. of San
Francisco, 71 F. Supp. 3d 1072, 1083, n.4 (N.D. Cal.
2014) (Koontz undermines the reasoning for holding
 32

legislative exactions exempt from scrutiny under

Nollan and Dolan), appeal pending.
This deep and irreconcilable split of authority is
firmly entrenched, and it cannot be resolved without
this Courts review. This petition provides the Court
with a good opportunity to address the split of
authority on the scope of Nollan and Dolan because,
due to West Hollywoods factual concessions, it
presents the issue as a pure question of law. There is
no question that, if Nollan and Dolan apply to the
exaction, a constitutional violation occurred.

CONCLUSION
The petition for writ of certiorari should be
granted.
DATED: March, 2017.
Respectfully submitted,

BRIAN T. HODGES LAWRENCE G. SALZMAN

Counsel of Record Pacific Legal Foundation
Pacific Legal Foundation 930 G Street
10940 Northeast 33rd Place, Sacramento, California 95814
Suite 210 Telephone: (916) 419-7111
Bellevue, Washington 98004 Facsimile: (916) 419-7747
Telephone: (425) 576-0484 E-mail: lgs@pacificlegal.org
Facsimile: (425) 576-9565
E-mail: bth@pacificlegal.org

Counsel for Petitioners